Presentation to the Canadian Institute on Canada's Anti-spam Legislation and Marketing Best Practices.

1. Canada’s Anti-Spam Law
January 26, 2012
Wally Hill
Vice-President
Public Affairs and Communications
Canadian Marketing Association
Matt Vernhout
Director, Delivery & ISP Relations
TC Media

2. Spam Facts
 Spam: The use of electronic messaging systems to send unsolicited bulk
messages indiscriminately (Wikipedia)
 Ranges from the annoying to very harmful
 Pernicious activities like malware, spyware, phishing and other frauds are
lumped into the category of “spam”
 Spam accounts for 45-90% of email traffic
 Symantec’s June 2011 report pegs it at 73%
 Hotmail/MSN blocks between 85 and 95% of incoming messages at the
network edge each month
 Scams & frauds amount to less than 2% of traffic
 E.g.: one in 330 emails is a phishing attack (Symantec)
Canada has High Rate of Blocked Email
Examining commercial email success rates in the two countries comprising North America, the study finds Canada, with a roughly 85%
success rate, has a disproportionately high rate of blocked emails (12%). Meanwhile, the US has an 86% success rate, with only 6% of
commercial emails blocked.
- Return Path B2B email delivery report - Sept 2011

3. History
 Spam laws in all G-8 countries since mid-2000’s
 U.S. CAN-SPAM law in place since 2003
 Canada’s Anti-Spam Task Force – May 2005 report
 Key recommendations:
 Legislation and enforcement
 International co-operation & enforcement
 Spam co-ordination centre
 Strong best practices for ISPs, networks
and emailers
 Consumer education

4. Recent History
 Part of Canada’s Digital Economy Strategy
 Election commitment of current government
 Canada introduces legislation April 2009

5. The CASL Journey
2004-2005 2009 MAY 2010 DEC 2010 Q2 2011
Q2/3 2012
Federal Anti- C-27 Electronic C-28 Fighting C-28 Receives C-28
C-28
Spam Task Commerce Internet and Royal Assent Regulations
Enforcement
Force Protection Act Wireless Spam (with no short presented by
begins
(FAST-F) (ECPA Act (FISA) name) Industry Canada
Government
Prorogued
Elections
Elections
2011
Two
CASL is not in effect until proclaimed “in force” by the
Government and detailed regulations are in place

6. What Does CASL Cover?
Purpose:
Promote the efficiency & adaptability of the Canadian economy by
regulating commercial conduct that discourages the use of electronic
means to carry out commercial activities, because that conduct
(a) impairs the availability, reliability, efficiency and optimal use of
electronic means to carry out commercial activities;
(b) imposes additional costs on businesses and consumers;
(c) compromises privacy and the security of confidential information; and
(d) undermines the confidence of Canadians in the use of electronic
means of communication to carry out their commercial activities in
Canada and abroad.

7. What Does CASL Cover?
 Commercial Electronic Messages
 Limited to computer systems located in Canada used to Send, Route
or Access electronic messages
 Installation of Computer Programs

8. What is a CEM?
Commercial Electronic Message (CEM)
An electronic message that one can reasonably conclude has as its
purpose to encourage participation in a commercial activity, including an
electronic message that:
 Offers to purchase, sell, barter or lease a product, goods, a service
 Offers to provide a business, investment or gaming opportunity
 Advertises or promotes anything referred to above
 Promotes a person, including the public image of a person, as being a
person who does anything referred to above, or who intends to do so
 Contains a request for consent to send a CEM
CEMs sent between individuals with personal or family relationships (as
defined) are exempt from these requirements

9. CEM Requirements
Consent requirements
 Must clearly & simply set out purpose(s) for consent
 Must obtain express consent to send CEMs unless there is an
 Existing Business Relationship (as defined) OR
 Existing Non-Business Relationship (as defined)
 May rely on implied consent to send CEMs to recipients with an Existing
Business or Non-Business Relationship
 EBR last for 2 years from last transaction

10. CEM Requirements
Consent is not required when the CEM solely:
(a) provides a requested quote or estimate for the supply of a product, goods, a service,
land or an interest or right in land
(b) facilitates, completes or confirms an agreed commercial transaction
(c) provides warranty information, product recall information or safety or security
information about a used or purchased product, goods or a service
(d) provides notification of factual information about
(i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product,
goods or a service offered under a subscription, membership, account, loan or similar
relationship, or
(ii) the ongoing subscription, membership, account, loan or similar relationship
(e) provides information directly related to an employment relationship or related benefit
plan
(f) delivers a product, goods or a service, including product updates or upgrades, that
recipient is entitled to receive under the terms of a transaction that they have previously
entered into with the person who sent the message or the person — if different — on
whose behalf it is sent

11. CEM Requirements
Message content must:
 Identify all known sender(s)
 Provide sender(s) contact information
 Provide an unsubscribe mechanism for all sender(s)
 Unsubscribes must be honored within 10 business days
 Mechanism must be valid for at least 60 days
 Mechanism must be provided at no cost

12. Transitional Provisions
 Implied consent may be used for Existing Business & Non-Business
Relationships for up to 3 years after the regulations come into force provided
that:
 Relationship already includes communication via CEM
 Individual has not withdrawn consent
 All unsubscribe requests going forward are honored

13. Consequences
 CRTC:
 Up to $10 mm per violation for Corporations
 Up to $1 mm per violation for individuals
 Other penalties:
 Administrative Monetary Penalties (AMP)
 Can be avoided by entering into an “undertaking” for honest
mistakes
 Private rights of action, with statutory damages
 Fines
 Imprisonment
 In many instances; officers, directors, agents and mandatories
face liability if they directed or acquiesced in the violation

14. CASL Status & Regulations
 CASL is not in force- date will be set by the Federal Cabinet – often announced
alongside gazetting of final regulations
 July 2011 – Industry Canada and CRTC issue proposed regulations for comment by
September 7
 Sept 7, 2012 – end of 60-day comment period on proposed regulations; government
considering many comments; holding discussions with stakeholders
 Oct/Nov/Dec 2012 -- Government reviews stakeholder feedback, coupled with informal
consultations
 Government normally takes 60 days to finalize and Gazette the cabinet-approved
regulations
 Jan 2012 – Some signals that Government may Gazette additional regulations or re-
gazette regulatory package in February
 With a 30 day comment period, we could see final regulations in May/June
 Looking ahead - Work progressing on regulations - CASL implementation could be later
2012 depending on “notice” period

15. CASL vs. CAN-SPAM: Key
Differences
CASL
 Addresses broad range of Internet issues
 Applies to all forms of electronic messaging (email, SMS,
IM, etc.)
 Prior Permission based
 Private right of action: available to anyone (individuals,
businesses, etc.)
CAN-SPAM
 Addresses spam only
 Applies only to email, contains SMS domain opt-out
 Opt-out; you can technically mail any person at least once
 Private right of action available only to ISPs, and
Government

16. Types Of Messages
Commercial
 Offers to purchase, sell, barter or
lease a product, goods, a service,
land, promotes a person
Transactional
 Provides a quote or estimate,
completes or confirms a transaction,
warranty, product recall or safety or
security information
Primary Purpose
(CAN-SPAM only)
 80/20 rule applied to transactional
content with commercial up sell or
add-on

17. Identification Recommendations
CASL requires senders to:
 Identify themselves
 Indicate on whose behalf the message is sent
 Provide up-to-date contact information

18. Data Maintenance Recommendations
 Recommendations:
 Enable reply to email unsubscribe that get sent to your
customer service team
 Stop using “no-reply@” emails
 Strict data hygiene and
sun-setting programs
 Sun-setting Process (example):
 At 18 month - Send a reconnection message to your
subscribers, entice them to be come active again.
 At 22 months – Send a reminder and notice of pending
unsubscription
 At 24 months stop mailing

19. 3rd Party Email Recommendations
List owner - Banner
 List owner from address and
logo/branding
 3rd party Logos/content
 List owner unsubscribe
 Contact info for both parties
 3rd party message notice
 Postal info
List owner - Footer

20. SMS Recommendations
 Opt-in process following the current standards set by
the short code policies set by the CWTA
 One time reply is fine under the ‘inquiry’ exclusion when
used to directly respond to a specific question
 CEMs will require identification and unsubscribe
information in each message
 145-160 character limit is getting smaller:
‘rply STOP 2 unsub, Corp Name’
 Maybe only 100 characters left for your message

21. Social Media, IM and CASL
 Twitter, Facebook, and Instant
Messaging accounts are
considered electronic accounts
and are covered by CASL
 Social Consent is controlled by the
Social Networks Follow/unfollow –
like/unlike features
 If you plan on Promoting via Social
Media add text to splash pages
and account backgrounds
regarding CASL identification
information and notice of
promotional content

22. Power Up Your Online
Marketing
 Start the process now to review and plan for change
in your communication programs
 Review your existing practices against this Legislation
(or work with a partner to do this)
 Rework wording to gather express consent with a
clear and easy to understand sentence
 Begin monitoring the date of data collection
 Implement sun-setting programs based on date field
 Look to update your Preference centers to offer
more choice
 Review the CWTA Short code guide for Mobile
initiatives

23. Advanced Ideas For Marketers
Marketers should:
 Think about digital marketing
permission/privacy on a global perspective.
 Establish a baseline policy for interacting with
subscribers across all digital technologies.
 Optimize communications based on
customers expressed preferences, observed
behaviours, demographics and customer
lifetime value.
 Use explicit opt-in methods for capturing
contact information.
Move away from “shout” marketing...

24. Anti-Spam in Canada - Summary
Canadian Anti-Spam Legislation or CASL:
 Prior Consent
 Prohibits unsolicited commercial electronic messages
 Prohibit installation of programs without consent
 No false information
 Sender or subject lines
 No harvesting or dictionary attacks
 More than email:
 IM; SMS; social media; voice*

25. Anti-Spam in Canada - Summary
Other requirements:
 Unsubscribe:
 Without delay, but not longer than 10 business days
 Proper identification (postal address)
 Private right of action included
 Officers of organizations can be held accountable
for their organizations messages
Exemptions:
 Family or personal relationship; business
inquiry/relationship
Enforcement:
 Cross border - Can’t hide under HQ location
 Protection for “honest” mistakes

26. Thank You!
Wally Hill Matthew Vernhout
Vice President, Public Affairs & Director, Delivery & ISP Relations
Communications
TC Media
Canadian Marketing Association
Twitter: @cdnmarketing Twitter: @emailkarma
Resources:
 The Canadian Marketing Association: http://www.the-cma.org
 TC Media: http://www.tc.tc
 EmailKarma.net: http://emailkarma.net

27. Appendix

28. Definitions
 What is an Existing Business Relationship?
A business relationship between sender and recipient arising from
any of the following scenarios:
 the purchase or lease of a product, goods, or service
 the acceptance of a business, investment or gaming opportunity (e.g.
within 2
contest)
years
 a written contract unrelated to a purchase or lease as described above
 an inquiry or application related to items 1 or 2 above from the
within 6 person to whom the message is sent
months

29. Definitions
 What is an Existing Non-Business Relationship?
A non-business relationship between sender (registered charity, a
political party or organization, or a person who is a candidate for
publicly elected office) and recipient arising from any of the following
scenarios:
 a donation or gift to the sender
within 2  volunteer work or attendance at a meeting
years  membership in a club, association or voluntary organization

30. Definitions
 Implied Consent can be used in the following scenarios:
1. Sender has an existing business relationship or an existing non-business
relationship with the recipient

31. Definitions
 Implied Consent can be used in the following scenarios:
2. Recipient has conspicuously published the electronic address to which
the message is sent and:
 the publication is not accompanied by a statement that the person does not wish to
receive unsolicited commercial electronic messages at the electronic address AND
 the message is relevant to the person’s business, role, functions or duties in a business or
official capacity

32. Definitions
 Implied Consent can be used in the following scenarios:
3. Sender has disclosed the electronic address to which the message is
sent and
 Did not indicate a wish not to receive unsolicited commercial electronic messages at the
electronic address, AND
 The message is relevant to the person’s business, role, functions or duties in a business
or official capacity

33. Key concerns with draft regulations
 Consistency with other laws – especially PIPEDA
 Consent requirements, transition provisions
 Technological neutrality
 Prescriptive form requirements, definition of personal relationship, consent “in
writing”
 Implementation period
 Adequate for compliance prep, awareness & education
Submissions available to Members
www.the-cma.org

34. What is TC Media?
Marketing Activation is the method used to bring a brand message to life
through a strategic, integrated campaign that leverages the full potential
of a wide range of marketing communications tools (print, media,
interactive and more) in order to maximize results and provide the greatest
return on investment.
34